The opinion of the court was delivered by: KRAFT
Plaintiff, a guest passenger in an automobile, brought this action to recover damages for personal injuries sustained when the automobile collided with the rear end of defendant's truck proceeding in the same direction on a public highway.
Defendant joined Moore, owner and operator of the automobile, as third-party defendant. Plaintiff asserted no claim against the third-party defendant.
The jury, in answer to written interrogatories, found that defendant was negligent, but that such negligence was not a proximate cause of plaintiff's injury; and that third-party defendant was negligent, and such negligence was a proximate cause of plaintiff's injury.
The case is now before us on plaintiff's motions for judgment or for a new trial, following entry of judgment in accordance with the jury's findings.
A brief summary of the evidence will be sufficient for present purposes. The accident happened about 2:30 A.M., on September 22, 1957, on the two-lane, eastbound drive of the Schuylkill Expressway, some 1,250 feet west of City Line Avenue, Philadelphia. The shock of the impact deprived plaintiff of all memory of the occurrence, and of the events immediately preceding and following it. Her only eyewitness to the happening was one McClain, who testified that he was operating his motorcycle eastwardly in the left lane of the eastbound drive of the Expressway, following defendant's truck. Moore's automobile was in the right lane and between McClain and the truck. McClain stated that the truck moved over to the right lane and then onto the right shoulder of the road, where 'it threw up stones and dust and went on to the right-hand lane again and about that time this car struck the back of it.' On cross-examination, McClain stated:
'I got the impression at the time that the truck was going to pull over to the shoulder of the road and I was going to pull ahead of the truck and the car when this truck shot out from the shoulder of the road again on to the right-hand lane and this car struck the back of it.'
McClain further testified that there were no lights on the rear of the truck just prior to the collision. Other evidence would also support a finding of a violation by the defendant of Interstate Commerce Commission Regulations prescribing maximum driving hours for truck operators.
Moore did not testify. His counsel expressly waived his opening statement and his right to present testimony, and rested his case.
Plaintiff contends that, since the jury found negligence on the part of the defendant, the Court should rule as a matter of law that such negligence was a proximate cause of plaintiff's injury. The argument necessarily presupposes that the jury must have accepted McClain's testimony with respect to the truck's rear lights or its movements just before the collision. Such an assumption is entirely unjustified. The jury could as reasonably have found, as it did, negligence which was not a proximate cause of the accident. It could have found, for example, a negligent violation of the Interstate Commerce Commission Regulations in no way related to the happening. The jury's findings are reasonably explicable on several grounds.
It is indisputable, we think, that the questions of negligence and proximate cause were for the jury, and that plaintiff's motion for judgment must be denied.
Our views on the questions therein presented make it necessary to consider only one of the grounds urged for a new trial. We think that counsel for the third-party defendant, wholly inadvertently and with no ulterior motive, exceeded somewhat the bounds of legitimate advocacy in some of his remarks to the jury. Plaintiff's counsel, with a show of vigor that was conspicuously absent at the trial, now strenuously urges this conduct of Moore's counsel as a ground for a new trial. We are constrained to observe that whether from over-confidence, indifference or ignorance, plaintiff's counsel offered no motion or objection at the trial. However, we think these statements may have had a seriously prejudicial effect on plaintiff's case and are not disposed to see the plaintiff suffer injustice through the inattention of her counsel in the circumstances here present. In the course of his summation, counsel for Moore said:
'Members of the jury, so that you won't be guessing why I haven't put my client on this stand, let there be no mistake about it and I will tell you. I don't have perhaps nearly the experience of either of these two lawyers but I have been around long enough to know when your client strikes the rear of a tractor-trailer with the force that Mr. Moore's car hit this tractortrailer on a straight uphill climb, there is no way that Mr. Moore in truth can escape responsibility. There is no way in which I as his lawyer can conjure up any version of this accident, in truth, and I put that in quotes, and ask you to have my client escape responsibility.
'I know a little bit about the law, too, and I am not going to quote it to you but I think it is common sense to know that if you run into the rear of someone else's vehicle, you have got to be a mastermind to try ...